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Anti-Patent Troll Bill Must Not Sidestep ITC Reform

A new anti-patent troll bill has been introduced in the House of Representatives. Although it doesn’t really address the major cause of the troll problem—vague and overbroad patents—the bill’s litigation-focused reforms are clever and will likely be effective. Unfortunately, the bill suffers from one glaring omission: it completely ignores well-documented patent litigation problems at the International Trade Commission.

Why isn’t ITC reform included in the bill? In a speech yesterday, House Judiciary Committee chairman Bob Goodlatte (R-VA), directly answered that very question:

We very much agree that the ITC’s involvement in protecting intellectual property needs to be examined. Unfortunately, it is not primarily [within] the jurisdiction of the House Judiciary Committee…. We’re very open to collaborating with the Ways and Means Committee, and we are very open to ideas that would allow us to address any aspect of that.

First off, I’d like to point out that the congressional committee in charge of overseeing the patent system does not have jurisdiction to initiate legislative oversight of a uniquely independent, specialized patent court. This is just one more sign of how awkward and inappropriate it is to have a trade agency litigating patent disputes.

More immediately though, I would like to take this opportunity to implore the Republican leadership in the Ways and Means Committee and the Trade Subcommittee to accept Chairman Goodlatte’s invitation, jump heartily onto the patent reform bandwagon, and fix the ITC’s patent mess.

The reason patent trolls are a problem at the ITC is because of the agency’s excessive remedies. When the producer’s infringement involves one piece of technology worth a tiny fraction of the value of a high-tech electronic device, total exclusion of the product from the U.S. market is uncalled for. It would not happen in a court, and it should not happen at the ITC. The courts have ways to determine whether an injunction is appropriate, and ITC reform need only align the agency’s practice with the courts. The best way to do that right now is to reshape and strengthen the ITC’s public interest test.

But please, please don’t try to fight patent trolls by making the ITC’s patent procedures more protectionist. We do not need a stricter domestic industry requirement. Foreign trolls are not worse than domestic trolls. For that matter, foreign patent infringers are not worse than domestic patent infringers. There are ways to make the ITC less attractive to patent trolls without making it more attractive to protectionists.

In a perfect world, we would ditch the whole thing. There’s just no need to have a special patent enforcement mechanism for imports. But as long as they do it right—and there’s reason to think they will—Congress can fix some of the problems caused by having a dual-track patent litgation system if ITC reform gets included in the current bill.